Obregon v. Superior Court

• Decision Date: 22 October 1998
• Docket Number: No. B120820,B120820
• Citation: 67 Cal.App.4th 424,79 Cal.Rptr.2d 62
• Parties: , 98 Cal. Daily Op. Serv. 7972, 98 Daily Journal D.A.R. 11,025 Jovita OBREGON, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent, Cimm's, Inc., et al., Real Parties in Interest.
• Court: California Court of Appeals Court of Appeals

Page 62

79 Cal.Rptr.2d 62

67 Cal.App.4th 424, 98 Cal. Daily Op. Serv. 7972,

98 Daily Journal D.A.R. 11,025

Jovita OBREGON, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent Cimm's, Inc., et al., Real Parties in Interest.

No. B120820.

Court of Appeal, Second District, Division 2, California.

Oct. 22, 1998.

Certified for Partial Publication. ^*

Howard S. Rosen and Paul S. Zimmerman, Woodland Hills, for Petitioner.

No appearance for Respondent.

Sheppard, Mullin, Richter & Hampton, Charles F. Barker and Teresa F. Elconin, Los Angeles, for Real Parties in Interest.

ZEBROWSKI, Associate Justice.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff and petitioner was employed at a Burger King franchise owned and operated by real party Cimm's, Inc. (hereafter "Cimm's"). Plaintiff sued Cimm's and her former supervisor at Burger King for sexual harassment and related claims. The supervisor did not respond and his default was entered. Litigation proceeded against Cimm's.

Plaintiff served form and special interrogatories on Cimm's. ¹ Cimm's served responses consisting of a mixture of factual answers and objections. Over five weeks passed without further action in this regard. Then, with approximately 13 days left before a motion to compel had to be filed, plaintiff sent a letter requesting further responses. Nine days later, Cimm's responded by asserting essentially the same objections as Cimm's had asserted in response to the original interrogatories. Plaintiff received Cimm's response one day before the deadline for filing a motion to compel. In light of the short time left before the filing deadline, plaintiff filed her motion to compel without making further contact with Cimm's. The motion came on for hearing in due course, with Cimm's opposing on the ground that plaintiff had failed to satisfy the requirement of a "reasonable and good faith" attempt at "informal resolution." The trial court agreed that plaintiff's efforts were inadequate, denied the motion to compel, and imposed sanctions on plaintiff. Plaintiff then filed this writ petition.

II. DISCUSSION

A. Code of Civil Procedure section 2030 requires a good faith attempt to resolve discovery disputes informally.

Code of Civil Procedure section 2030, subdivision (l), provides that "If the propounding party, on receipt of a response to interrogatories, deems that (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents under paragraph (2) of subdivision (f) is unwarranted or the requested specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general, that party may move for an order compelling a further response. This motion shall be accompanied by a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion."

B. The trial judge permissibly found plaintiff's informal resolution efforts inadequate under the circumstances.

As required by section 2030, plaintiff's motion was accompanied by a declaration detailing plaintiff's efforts at informal resolution. Plaintiff's declaration contended that, after one extension of time to respond, Cimm's had provided "incomplete or evasive responses and/or meritless objections as detailed in the Separate Statement served and filed herewith." ² The declaration stated that plaintiff then sent a letter--by both fax and mail--to Cimm's about 13 days before the motion filing deadline. A copy of that letter was attached as an exhibit. The two-page letter identifies interrogatories by number either individually or in a group, and follows this identification with a commentary and statement of position concerning the nature of Cimm's prior responses. As to some interrogatories, the letter contends that objections had been waived, and asserts that "full and complete responses to all these interrogatories should be forthcoming." The letter concludes with a statement of belief "that the above-mentioned problems can be resolved cooperatively and informally, without the need of a motion to compel, and I look forward to hearing from you within the next week [in] the hopes that a motion won't be necessary." While somewhat abbreviated, the letter is otherwise typical and is cordial in tone throughout.

Plaintiff's declaration continued that one day before the motion filing deadline, plaintiff received Cimm's responsive letter, which was also attached as an exhibit. Cimm's sent this letter by mail; there is no indication that it may also have been sent by fax. ³ Cimm's letter is also cordial in tone, reviewing Cimm's positions on the interrogatories identified in plaintiff's letter, but making no concessions other than to state that Cimm's was continuing to assemble information. The letter ends: "Please do not hesitate to call me if you should have any further questions or comments."

Plaintiff's declaration concluded by stating that Cimm's letter "although explaining defendant's [Cimm's] position in greater detail, offered no substantive changes in that position, but merely reiterated the same objections and arguments at greater length the same [sic]. In order to secure the discovery necessary to her case, Plaintiff has no recourse but to bring this motion." ⁴

In opposition, Cimm's pointed out the grossly overbroad nature of plaintiff's discovery requests, and complained that the extension of time agreed to by plaintiff at Cimm's request had only been for seven days. Cimm's declaration stated that Cimm's had then responded, but had received no further contact regarding the interrogatories until plaintiff's letter 13 days before the motion filing deadline. Cimm's declaration claimed that Cimm's responsive letter "offered several alternative solutions to resolve our discovery disputes" and that Cimm's "fully anticipated that plaintiff's counsel would contact me regarding my suggestions." Cimm's declaration continued that plaintiff "never responded to my suggestions" and instead immediately filed a motion "without any meaningful attempt to meet and confer in good faith regarding our discovery disputes." Moreover, Cimm's declaration continued, plaintiff did not request an extension of time within which to file motions even though such extensions had previously been granted. ⁵ Based on this evidence, Cimm's argued that plaintiff had failed to attempt an informal resolution in good faith, and that plaintiff's motion should be denied for that reason. The trial court agreed.

To the extent that the trial court's ruling that plaintiff had not made "a reasonable and good faith attempt at an informal resolution" was based upon factual determinations, that ruling is subject to the substantial evidence standard of review. (See, e.g., 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 359-364, pp. 408-414; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs 1 (The Rutter Group 1997) p 8:38 et seq.) To the extent that the trial court's ruling regarding the adequacy of plaintiff's informal resolution efforts was based upon undisputed or determined facts, it is subject to the abuse of discretion standard of review. (See, e.g., Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs 1 (The Rutter Group 1997) p 8:85 et seq.) A reviewing court must therefore first determine whether substantial evidence supports the factual basis on which the trial court acted, and then determine whether the orders made by the trial court were an abuse of discretion in light of those facts.

Although it facially appears that there is no dispute here concerning the facts comprising the immediate effort at informal resolution, a determination of this kind (reasonability and good faith) almost inherently involves the court in considering issues of a factual nature. Here the trial judge had been presiding over discovery and other aspects of this case for some time. She had the opportunity to learn the issues in the case, to observe the practices of the attorneys, and to form judgments on the attorneys' credibility and motivations. When assessing credibility and motivation, past experience is often a prime indicator. An abuse of discovery procedures in one instance can imply a continuing intent to abuse in other instances. Any discovery request, even an initial one, can be misused in an attempt to generate settlement leverage by creating burden, expense, embarrassment, distraction, etc. It is a judge's responsibility to control such abuse. (Cf. Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 221, 61 Cal.Rptr.2d 567 [discovery abuse is a spreading cancer; judges must be aggressive in curbing abuse; discovery statutes are prone to misuse absent judicial consideration for burden; courts must insist that discovery be used to facilitate litigation rather than as a weapon].) ⁶ Here the discovery requests were very broad, and their full scope does not appear reasonably related to the issues in the case. Since plaintiff's motion was denied simply for failing to attempt informal resolution, the trial court never reached the merits of the discovery requests, but the overbreadth of the requests is nevertheless relevant in this connection. When discovery requests are grossly overbroad on their face, and hence do not appear reasonably related to a legitimate discovery need, a reasonable inference can be drawn of an intent to harass and improperly burden. When a judge evaluates such factors to determine whether a party has acted reasonably and in good faith in attempting informal resolution, a factual component of decision, derived from the trial judge's knowledge of the case, is inevitably involved. A trial judge's perceptions on such matters, inherently factual in nature at least in part, must not be lightly disturbed.

A determination of whether an attempt at informal resolution is adequate also involves the exercise of...